Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER SUPREME COURT DOCKET NO. 2013-217 MARCH TERM, 2014 Catherine Heller } APPEALED FROM: } } Commissioner of Labor v. } } Bast and Rood Architects } DOCKET NO. T-12409 In the above-entitled cause, the Clerk will enter: Claimant in this workers’ compensation dispute appeals from a decision of the Commissioner of the Department of Labor. She contends the Commissioner erred in: (1) denying her claim for additional partial permanent disability benefits after her degenerative spine condition worsened; and (2) awarding her only a portion of the cost of a medical examination. Employer Bast & Rood Architects has cross-appealed from the decision, claiming that the Commissioner erred in awarding any payment for the medical examination. We affirm. As found by the Commissioner, the facts relating to the claim for additional benefits may be summarized as follows. In January 2003, claimant slipped and fell on the ice while leaving work. Prior to the 2003 slip on the ice, claimant had a history of treatment for lower back pain following motor vehicle accidents in 1986 and 2001. Nevertheless, the employer accepted as compensable the complaints referable to her lower back. In 2007, the Department approved the parties’ Agreement for Permanent Partial Disability Compensation (Form 22) based on a ten percent whole person impairment rating rendered by Dr. Thomas Grace in August 2005.1 In 2010, following a determination by the Commissioner as to the reasonableness of certain treatments, claimant resumed treatment for her compensable lower-back condition. She underwent a series of spinal injections, but the pain persisted. In February 2012, claimant was examined by Dr. Keith Harvie, a board-certified osteopath and orthopedic surgeon. In his support to the inference “that such non-work-related factors are more likely driving [c]laimant’s current circumstance.” The Commissioner thus accepted Dr. Grace’s opinion that “the natural aging process was the most likely cause of [claimant’s] increased permanent impairment,” and concluded that claimant had failed to prove that the work-related injury had caused her permanent impairment to increase since the initial award.

The Commissioner noted that when the employer accepted claimant’s claim on account of the 2003 fall it was not accepting responsibility for the entire course of claimant’s degenerative lumbar spine condition. That condition preceded the 2003 fall. What the employer accepted was the compensability of “the acceleration or aggravation of that condition” as a result of the fall. The permanency benefits claimant previously received compensated her for that compensable consequence. The Commissioner concluded, “[a]t some point, the causal relationship between her work injury and the continued progression of her disease becomes too attenuated . . . . That point has now been reached.”

With respect to compensation for the cost of Dr. Harvie’s examination, the Commissioner found that it was appropriate for claimant to consult with Dr. Harvie “to gain a better understanding of how the dysfunction in her lower back was evolving and to learn whether a surgical solution might ultimately become necessary.” The commissioner further observed that it was proper for Dr. Harvie to review claimant’s “voluminous” medical file and “conduct a thorough examination in order to provide well-reasoned and considered medical advice.” However, the Commissioner also found based on Dr. Harvie’s report and testimony that he had devoted “at least one-third of his time to issues that were unrelated to [c]laimant’s compensable injury.” Accordingly, the Commissioner awarded claimant two-thirds of the cost of the examination as “reasonable medical services provided as treatment for [c]laimant’s compensable injury,” for which employer was responsible under 21 V.S.A. § 640(a), for a total award of $3,441.

As noted, claimant has directly appealed to this Court from both the denial of her claim for additional permanent partial disability and the denial of one-third of the cost of Dr. Harvie’s examination; employer has cross-appealed the award of two-thirds of the cost of Dr. Harvie’s examination. See id. § 672 (supreme court may review questions of law certified to it by commissioner).2

Our review is limited. “We are bound by the Commissioner’s findings so long as they are supported by the evidence.” Cehic v. Mack Molding, Inc., 2006 VT 12, ¶ 6, 179 Vt. 602 (mem.). Findings may be overruled only where they “have no evidentiary support in the record or where the decision is based on evidence so slight as to be an irrational basis for the result reached. Id. (quotations omitted). “Where the Commissioner’s conclusions are rationally derived from the findings and based on a correct interpretation of the law, we will affirm.” Id. (quotation omitted).

Claimant asserts that she was entitled to compensation for the additional permanent disability resulting from the degeneration in her lumbar spine because, as the Commissioner noted, Dr. Grace acknowledged that the work-related fall had “played a role” in the degenerative process. The argument is unpersuasive. As the Commissioner noted, Dr. Grace stated in his written report that claimant’s spinal degeneration would have progressed from her last evaluation in 2005 to her current condition entirely “apart from her 01/02/2003 work related injury.” It was his opinion that claimant’s decreased mobility was “due [to] an aging phenomena . . . to a reasonable medical certainty.” Dr. Grace’s testimony was to the same effect, that aging was the “main reason” for the increased stiffness in claimant’s spine, combined with her weight and medical history. He did not believe that the work-related fall “as a probability . . . [was] . . . the reason why she increase[d] her arthritic changes to the extent she has and why she’d have a decreased range of motion.”

It is the claimant’s “burden of showing a causal connection between the injury and his employment and that he is therefore entitled to relief under the Workers’ Compensation Act.” Egbert v. The Book Press, 144 Vt. 367, 369 (1984). In the face of these various definitive statements from Dr. Grace, the Commissioner was entitled to conclude that claimant did not meet her burden of demonstrating that the work injury had a causal role in the deterioration in claimant’s rated permanency between 2005 and 2012. The fact that Dr. Grace at one point in his report said that he could not “dismiss entirely her work related injury as having no contribution to her increase in her degenerative spine condition” does not undermine this conclusion. Dr. Grace’s acknowledgment that he cannot rule out a possibility does not undermine his opinion as to probability. The Commissioner was entitled to consider Dr. Grace’s report as a whole.

Moreover, the Commissioner was entitled to credit Dr. Grace’s testimony as opposed to Dr. Harvie’s based on the length of his relationship with claimant and the clarity and objective support underlying his opinions. See Houle v. Ethan Allen, 2011 VT 62, ¶¶ 9, 14, 190 Vt. 536 (mem.) (setting forth criteria for evaluating expert’s persuasiveness and finding that Commissioner of Labor did not err in relying on one medical expert’s opinion which “was based on facts, not speculation, and . . . offered . . . to a reasonable degree of medical certainty”). The Commissioner’s findings were supported by the evidence, and her conclusion on causation was “rationally derived” from the findings and based on a correct application of the law. Cehic, 2006 VT 12, ¶ 6. Accordingly, we discern no basis to disturb the Commissioner’s decision denying the claim for additional permanent disability benefits.

Turning to the partial compensation award for Dr. Harvie’s charges, employer contends the Commissioner erred in characterizing the examination as compensable medical services for treatment under 21 V.S.A. § 640(a),3 asserting that it was merely an independent evaluation. We need not reach the question of whether the Commissioner had discretion to order employer to pay for an independent impairment rating on the facts of this case, because we conclude that the Commissioner’s conclusion that Dr. Harvie’s consultation was a reasonable medical expense is supported by her findings which are, in turn, supported by the record.

The Commissioner noted that claimant had testified that “her purpose for consulting Dr. Harvie was to gain a better understanding of how the dysfunction in her lower back was evolving and to learn whether a surgical solution might ultimately become necessary.” The Commissioner found that this was reasonable and appropriate, and that it was proper for Dr. Harvie to review claimant’s “voluminous” medical file and “conduct a thorough examination in order to provide well-reasoned and considered medical advice.” The fact that Dr. Harvie’s evaluation had some characteristics of an independent medical evaluation does not undercut the Commissioner’s factual conclusion that it constituted reasonable medical treatment.

For her part, the claimant faults the Commissioner for reducing the payment due from the employer to Dr. Harvie by one third. As the Commissioner noted, Dr. Harvie was asked to evaluate not only claimant’s low back, but also her right hip and right and left knees—conditions the Commissioner had already decided were not compensable. See Heller, 2011 WL 4979520, at *1. The Commissioner concluded, based on review of Dr. Harvie’s report and formal hearing testimony, that Dr. Harvie devoted at least one third of his time “to issues that were unrelated to [c]laimant’s compensable injury.”

The Commissioner’s finding on this point is supported by the record. Dr. Harvie’s twenty-six-page written report contained detailed diagnostic and therapeutic information on claimant’s back, neck, shoulders, hips, and knees, including specific recommendations on current and future treatment of her spine. Given her finding, the reduction in employer’s responsibility for the medical expenses to account for the portion of the bill unrelated to claimant’s compensable injury was within the Commissioner’s discretion. Accordingly, we affirm the Commissioner’s decision to compensate claimant for two-thirds of Dr. Harvie’s charges.

Affirmed.